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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ADAM CHASTEEN, 

 Plaintiff, 

 v. 

ROD JOHNSON, et al., 

 Defendants. 

 

Case No. 2:12-cv-229 

 Judge Marbley 

Magistrate Judge King 

 

REPORT AND RECOMMENDATION 

 

 Plaintiff has filed a motion to voluntarily dismiss the action 

without prejudice pursuant to Fed. R. Civ. P. 41(a). Doc. No. 106. 

Defendants oppose the motion. Doc. No. 109. Although the Court 

provided plaintiff the opportunity to reply in support of the motion, 

Doc. No. 100, there has been no reply. 

 Plaintiff, a former state prisoner proceeding without the 

assistance of counsel, asks leave to dismiss the action without 

prejudice “so that he may vigorously continue to attempt to retain 

counsel who can adequately plead the facts of this case, name and 

serve the proper defendants, and who has the means to diligently 

pursue relief for damages incurred in this case.” Doc. No. 106, p. 3. 

He also contends that dismissal of the action should not be predicated 

on any financial condition because of his indigent status. Id. at 5. 

Once an answer or motion for summary judgment has been filed, a 

plaintiff may voluntarily dismiss an action only upon stipulation or 

“by court order, on terms that the court considers proper.” Fed. R. 

Civ. P. 41(a)(2). A court is vested with broad discretion in 

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considering a motion to voluntarily dismiss and may fashion a remedy 

so as to avoid prejudice to other parties. Grover by Grover v. Eli 

Lilly & Co., 33 F.3d 716, 718 (6th Cir. 1994). The primary purpose of 

the required prior court approval is to protect a party from unfair 

prejudice. Summerville v. Ross/Abbott Laboratories, 187 F.3d 638 

(table), 1999 U.S. App. LEXIS 21009, 1999 WL 623786, at *17 (6th Cir. 

1999). The decision to permit a voluntary dismissal is improper only 

where a defendant would suffer “plain legal prejudice” as a result of 

the dismissal without prejudice. Grover, 33 F.3d at 718. 

However, such prejudice does not result from the mere prospect of 

a second lawsuit. Id. In Grover, the United States Court of Appeals 

for the Sixth Circuit identified four factors relevant to the 

determination whether plain legal prejudice will result from the 

voluntary dismissal: (1) the amount of time, effort and expense the 

defendant has incurred in trial preparation; (2) any excessive delay 

and lack of diligence on the part of the plaintiff in prosecuting the 

action; (3) insufficient explanation for the need to dismiss; and (4) 

whether a defendant has filed a motion for summary judgment. Id. 

 Defendants contend that the grant of plaintiff’s motion will work 

to their prejudice. Defendants specifically refer to the pending 

motions to dismiss as well as other filings made on behalf of 

defendants. Defendants also complain that plaintiff has not been 

diligent in prosecuting the action, particularly as it relates to the 

issue of service of process, and has not adequately explained his 

request to voluntarily dismiss the action. Should the motion be 

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granted, defendants ask that the grant be delayed until after 

resolution of the pending motions to dismiss or, at a minimum, should 

be conditioned on the payment of defendants’ fees and costs. Finally, 

defendants ask that any dismissal be with prejudice. Doc. No. 109. 

 The Court concludes that defendants will not be so prejudiced by 

the voluntary dismissal of the action as to warrant denial of 

plaintiff’s motion. Plaintiff’s interest in securing the assistance 

of counsel in any future prosecution of the action is, in the view of 

this Court, a substantial justification for the requested dismissal 

without prejudice. Moreover, any delay on the part of plaintiff in 

prosecuting the action, particularly as it relates to service of 

process or the failure to respond to the pending motions to dismiss, 

will not be aggravated by the grant of plaintiff’s motion; any 

defenses available to defendants at this juncture will remain 

available to them in any re-filed action. Finally, the expense and 

inconvenience associated with any future re-filing of the action is 

adequately addressed by Rule 41(d) of the Federal Rules of Civil 

Procedure.1

 It is therefore RECOMMENDED that plaintiff’s motion to 

voluntarily dismiss the action, Doc. No. 106, be GRANTED on the 

condition that, should plaintiff re-file the action, he be required to 

reimburse defendants for the expenses incurred by defendants in 

connection with the dismissal and re-filing of the action. 

                                                            

1 “If a plaintiff who previously dismissed an action in any court files an 

action based on or including the same claim against the same defendant, the 

court: (1) may order the plaintiff to pay all or part of the costs of that 

previous action; and (2) may stay the proceedings until the plaintiff has 

complied.” 

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 A preliminary pretrial conference is currently scheduled for 

April 3, 2013. In light of the recommendation that plaintiff’s motion 

to voluntarily dismiss the action be granted, that conference is 

VACATED but will be rescheduled should plaintiff’s motion to 

voluntarily dismiss the action be denied. 

 If any party seeks review by the District Judge of this Report 

and Recommendation, that party may, within fourteen (14) days, file 

and serve on all parties objections to the Report and Recommendation,

specifically designating this Report and Recommendation, and the part 

thereof in question, as well as the basis for objection thereto. 28 

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections 

must be filed within fourteen (14) days after being served with a copy 

thereof. Fed. R. Civ. P. 72(b). 

 The parties are specifically advised that failure to object to 

the Report and Recommendation will result in a waiver of the right to 

de novo review by the District Judge and of the right to appeal the 

decision of the District Court adopting the Report and Recommendation. 

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of 

Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States 

v. Walters, 638 F.2d 947 (6th Cir. 1981). 

 

 ___s/ Norah McCann King 

 Norah McCann King 

 United States Magistrate Judge 

March 27, 2013 

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